Silva V. Ragendra

Present : Mr. Justice Middleton.

SILVA v. RAJENDRA.
 
 M. C, Colombo, 5,593.

Public health-Neglecting to obey an order to fill up or disinfect a well- Requisites of proof-Mode of proof-"Owner"-Person holding power of attorney-Regulation 25 made under Ordinance No. 3 of 1897.

    In a prosecution for neglecting to obey an order made under regulation 25 of December 16, 1901, by authority of Ordinance No. 3 of 1897, there must be proof that the Chairman is satisfied, on proper materials, that the water is so polluted as to be dangerous to the public health.

    The various ways of proving this indicated.

    A person who holds a power of attorney from a person absent in England, and who manages the property of such person in the Island, is an " owner " within the meaning of the above regulation.

    APPEAL from a conviction by the Municipal Magistrate (E. W. Byrde, Esq.). The accused was charged as follows:-" That he, being the owner of premises bearing assessment No. 18, Kew

street, within the Municipality of Colombo, did on June 29, 1907, and thereafter, without lawful authority or excuse, omit to fill up the well in the said premises, which well he was required to fill up by a written notice served on him on May 18, 1907, and issued by the Chairman of the Municpial Council of Colombo under regulation No. 25, made under Ordinance No. 3 of 1897." and published in Ceylon Government Gazette No. 5,970 dated February 19, 1904, and that the said accused did thereby commit an offence punishable under section 7 (1) of the said Ordinance No. 3 of 1897."

    The Magistrate convicted the accused and fined him Rs. 50.

    The accused appealed.

    Bawa, for appellant.-There is no evidence to prove that the Chairman in fact arrived at the conclusion that the, water in the well was unfit for human consumption, nor that he came to such a conclusion on the report of a properly qualified analyst. The notice served on the accused is no proof (Leembruggen's Reports, 1905, p. 27). The accused is not an " owner " or " occupier " as required by the Ordinance. " Owner " means owner in the sense understood by the Civil Law. Finally, no option is given by the notice either to disinfect the well or to close it.

    F. J. de Saram, for respondent.-The case in Leembruggen's Reports can be differentiated from the present, and does not apply. The notice states that the Chairman was satisfied on the report of the Public Analyst, and the latter must be presumed to be properly qualified for the post he holds. Owner is not defined for the purpose of the Ordinance No. 3 of 1897, but a definition can be sought for in analogous Ordinances, viz., from the Ordinance No. 7 of 1887. section 3; Nuisances Removal, 18 and 19 V., c. 121, section 2; and the Public Health Acts. The provisions of the Ordinance should be construed so as to give effect to the intention of the Ordinance and not furnish a means of evasion (Maxwell on the Interpretation of Statutes, pp. 26, 72, and 405). The accused holds his father's power of attorney, and collects the rents in his absence. He accepted notice as owner, and is estopped from denying the fact now. The section gives the Chairman the option to order either the disinfection or the closing of wells.

    10th September, 1907. MIDDLETON J.-

    This was an appeal from a conviction by which defendant was fined for neglecting to obey an order of the Chairman of the Municipal Council made under regulation 25 of December 16, 1901, by authority of Ordinance No. 3 of 1897.

    It was agreed by counsel appearing in two other cases, Nos. 369 and 379, M. C, Colombo, 5,326 and 5,053, respectively, that, subject to any supplementary argument that they might be called on to add, the argument of Mr. Bawa in this case and the decision therein given should be, so far as it affected the other cases, decisive of them.
The regulation under which the prosecution is institu

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